By Ryan C. Wood
Unfortunately more than a few times we have had potential clients come to us and describe how they were improperly served with a summons and complaint in a California State court lawsuit. They are usually not personally served properly or the substitute service was not completed properly. California Civil Procedure Section 415.20 provides the proper forms of service. For some potential clients this is all irrelevant since they have other debts too that need to go away as well and seeking the counsel of a bankruptcy attorney to file bankruptcy and just make it all go away once and for all.
The problem is if you do not know about the lawsuit how do you defend it? The answer is you do not defend it and a default judgment is usually entered against you. The default judgment is then enforceable and attorney fees and costs can be added to the original amount of the debt plus interest will start to accrue. A $4,000 default judgment can turn into a $8,000 default judgment real quick.
As a practicing bankruptcy lawyer this is troubling. What is even more troubling is when the lawsuit was filed more than five years ago and the potential client did not even know about the lawsuit until their bank account was levied on or the creditor attempts to garnish their wages. So what can be done to combat this?
First a motion to quash the service of the summons and complaint should be filed and a motion to set aside the default judgment. California Civil Procedure Section 418.10 governs motions to quash or overturn the service of the summons and complaint because service was improper. The default judgment should be therefore be void and set aside or overturned. Unfortunately you will have to pay the appearance fee which will be at least $255.00 or more depending upon if the case is a limited civil case or an unlimited civil case. This is a special appearance and not a general appearance. A general appearance in a case will provide the court jurisdiction over the party making the appearance. This is a key point. The special appearance is only to bring to the attention of the court that you were not served properly so the default judgment is void. You will have to prove by a preponderance of evidence the service of the summons and complaint was not proper.
Next step in getting rid of the case or having it dismissed gets tricky. California Civil Procedure Section 583.210 provides the summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. The party suing you must serve you within three years of the case being filed or bring it to trial within five years. Both of these time restrictions can be tolled. Tolled means that the clock does not tick on the amount of time from the date the case was filed. There have been a number of cases litigated on whether the clock should be ticking or stopped and allow the party suing you more time to either serve you properly or bring the case to trial. Whether the court will dismiss the case outright could be challenging.